GILDERSLEEVE, P. J. The action is for personal injuries. Plaintiff was a passenger on defendant's car. Plaintiff's version of the accident is as follows, viz.: When the defendant's car had come to a full stop at the south crossing of Eighty-Second street and Columbus avenue, in response to plaintiff's signal to the conductor to stop the car, plaintiff started to get off said car from the back platform; but before he had had time to do so, and while he had one foot on the bottom step and was in the very act of getting off, the conductor rang the bell from the back platform, and the car started up and threw the plaintiff into the street, thereby causing the injuries complained of. He is corroborated by his sister, who was with him. The jury allowed plaintiff $550 damages. Defendant appeals.

The defendant's theory of the case, as shown by its evidence is that plaintiff was injured while attempting to alight from a moving car after it had started up from the south side of Eighty-Second street and Columbus avenue, where it had stopped to let plaintiff's sister get off. The conductor was not called as a witness; but defendant's investigator, who had, apparently, charge of subpoenaing witnesses for defendant, states in detail the unsuccessful efforts which he made to find the said conductor. The court, on the subject of the absence of this conductor from the trial, instructed the jury as follows:

"In this case the conductor is not produced as a witness. The defendant, however, has shown by a witness what endeavors it has made to procure the conductor; and it is for you to say from the evidence whether such efforts were reasonable or not, because, if you find from the evidence that no reasonable efforts were made to produce a witness who might have shed light on the subject, you would have a right to infer that that witness, if produced, would testify against the party that failed to call him. That does not mean that you must draw that inference; but, if you find no reasonable efforts were made to secure the attendance of the conductor, you would have the right to draw such an inference. But you, gentlemen, have heard the testimony on that particular point, as to whether or not sufficient efforts were made to obtain his presence."

Defendant's counsel at the close of the charge, said:

"May I except to that portion of your honor's charge where you said, if they [the jury] find that defendant failed to make reasonable efforts to produce the conductor in this action, they may indulge in the inference that his testimony would be against the defendant."

To this the court replied:

"I did not say that they 'must' infer. I said they 'might' infer. The jury has a right to say whether the defendant made diligent or reasonable efforts to procure his attendance. If they did so, that is all that can be asked of them."

The appellant's counsel urges that the above instruction was erroneous, as the jury could draw no inference from the failure of defendant to call a witness, unless it appeared that such witness was available and had better or other knowledge of the facts in dispute than had those who testified to them and that the evidence would not have been merely cumulative. In the case at bar the jury could judge of the availability of the conductor from the testimony of the investigator. One Cassidy, a passenger on the car, is the only actual witness to the accident produced by defendant. This witness swears that he was

and 138 New York State Reporter

standing at the conductor's side on the rear platform, talking with him, when plaintiff's sister signaled to the conductor to stop the car; that the car stopped, and she got off; that then the car started again; and that plaintiff came out of the car and jumped off after the car had started. It seems to us that the conductor had better knowledge of the facts, and that the testimony of the conductor, while it might have corroborated the evidence of Cassidy, could not be regarded as merely cumulative. He was in charge of the car, he was on the rear platform at the time of the accident, it was he who rang the bell for the car to start, and it was peculiarly within his knowledge whether or not he saw plaintiff attempting to alight when he gave the signal for the car to start, and he was in the best position to know the exact truth. In Hicks v. Nassau Electric Railway Co., 47 App. Div. 479, 62 N. Y. Supp. 597, the learned court said:

"It is a familiar doctrine that the failure of an employer to call a witness who was in his employ at the time of the accident, and is presumed to be friendly and have some knowledge of the accident, without any attempt to explain the reason of the failure, raises a strong presumption that the testimony of the employé would be damaging to such party"-citing Gordon v. People, 33 N. Y. 501; Schwier v. N. Y. C. & H. R. R. Co., 90 N. Y. 558.

In the light of the statement to the jury by the learned trial justice that, if diligent and reasonable efforts to procure the attendance of the conductor were made by the defendant, that is all that can be asked of them, we are of the opinion that the defendant was not prejudiced by the instruction to the jury under consideration. In Staib v. Union Ry. Co., 30 Misc. Rep. 777, 62 N. Y. Supp. 755, an action to recover damages for personal injuries arising from the alleged negligence of the defendant, this court held that:

"The plaintiff, in addition to her own evidence, was entitled to the benefit of the presumption arising from the failure of the defendant to produce its motorman and conductor."

The defendant in the Staib Case had given testimony tending to excuse the absence of the motorman and conductor, and in affirming the case this court stated that:

"The trial justice might well have viewed the absence of these witnesses as entirely unsatisfactory."

The rulings on the admissibility of evidence do not present any error of such weight as to call for discussion. There is abundant testimony. to sustain the verdict, and the judgment and order appealed from must be affirmed, with costs.

Judgment and order affirmed, with costs.

FITZGERALD, J., concurs in result. GOFF, J., concurs.

ALLEN v. CITY OF NEW YORK.

(Supreme Court, Appellate Division, Second Department. June 7, 1907.) MUNICIPAL CORPORATIONS-EMPLOYÉS-TRANSFER-RIGHT TO SALARY.

Municipal service rule 14 provides that on the written request of an appointing officer stating the facts with reference to a proposed transfer, accompanied by the written consent of the appointing officer from whose jurisdiction the transfer is to be made, the commission will, if such transfer be in accordance with law and the provisions of these rules, issue its certificate to that effect. Held, that where all the requirements of the rule were complied with, and plaintiff, a draughtsman at a fixed salary in the office of the president of the borough of Queens, was transferred to the commission of water supply, gas, and electricity and was at all times ready to perform his contract, he could not be deprived of his position in the latter department or of his right to salary by the refusal of the new head of that department to recognize the act of his predecessor.

Appeal from Municipal Court, Borough of Queens, First District. Action by John A. Allen against the city of New York. From the judgment, plaintiff appeals. Reversed.

Argued before HIRSCHBERG, P. J., and WOODWARD, JENKS, GAYNOR, and MILLER, JJ.

George F. Hickey (William E. Stewart, on the brief), for appellant. Royal E. T. Riggs (Theodore Connoly, on the brief), for respondent.

MILLER, J. On December 21, 1905, the plaintiff held a position in the classified civil service subject to competitive examination as draughtsman, at a salary of $1,800 per annum, in the office of the president of the borough of Queens. On that day the commission of water supply, gas, and electricity requested the civil service commission in writing to issue a certificate pursuant to rule 14 of the municipal civil service rules for the transfer of the plaintiff to the same position at the same salary in the department of water supply, gas, and electricity. Indorsed thereon was the written consent of the president of the borough of Queens. Pursuant to said request and consent, said commission issued its certificate approving said transfer, and duly notified said commissioner and said borough president thereof. Thereafter the plaintiff applied daily to the department of water supply, gas, and electricity for assignment to duty, until he was informed that he had not been transferred. His name was never on the pay roll of said department, but remained on the pay roll of the office of said borough president until February 16, 1906, when an entry was made to the effect that he was discharged for lack of work. It is not claimed, however, that the plaintiff performed any service in the office of said. borough president or received any salary after the issuance of said. certificate of transfer. He now sues to recover his salary, and appeals to this court from a judgment dismissing his complaint.

The respondent contends that the plaintiff's proposed transfer from the office of said borough president to the department of water supply, gas, and electricity was never consummated, and that, even if it was, being an employé merely, he cannot recover pay without having performed services.

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The first contention is based on the proposition that an appointment to an office must be in writing. Both sides assert that said position was not an office, and the transfer of the plaintiff was not an appointment. He held a definite position as draughtsman at an annual salary. What was attempted was his transfer from that position in one department to a like position at the same salary in another department. Rule 14 of the municipal civil service rules in evidence prescribes how that may be done, subdivision 4 thereof provides as follows:

"Upon the written request of an appointing officer, stating the facts with reference to a proposed transfer, accompanied by the consent, also in writing, of the appointing officer from whose jurisdiction the transfer is to be made, the commission will, if such transfer be in accordance with law and the provisions of these rules, issue its certificate to that effect; but no such transfer shall be made or recognized until after the issuance of such certificate."

All the requirements of said rule were complied with, and there is no force in the argument that the commissioner never exercised his prerogative of appointment, because the transfer was made on his written request. When the proper certificate of the civil service commission was issued on that request, accompanied by the written consent of the appointing officer from whose jurisdiction the transfer was made, it was consummated. All that remained to be done was to assign the plaintiff to duty in the department to which he had been transferred. He no longer held a position in the office of said borough president, and could not be deprived of his position in the department to which he was transferred in disregard of the statute by the refusal of the new head of that department to recognize the act of his pred

ecessor.

In support of the second proposition, the respondent cites Cook v. Mayor, 9 Misc. Rep. 338, 30 N. Y. Supp. 404, affirmed 150 N. Y. 578, 44 N. E. 1123; Quintard v. City of New York, 51 App. Div. 233, 64 N. Y. Supp. 904, and Eckerson v. City of New York, 80 App. Div. 12, 80 N. Y. Supp. 168, affirmed 176 N. Y. 609, 68 N. E. 1115, but in none of those cases did the person claiming salary hold a definite position to which a fixed salary attached and whose tenure was protected by statute. The plaintiff could only be removed by compliance with section 1543 of the charter (Laws 1901, p. 636, c. 466), and it is not claimed that he was removed or that any one was appointed to his position, or has drawn the salary attaching to it. The relation between an employé and the city is contractual. Where he holds a definite position at a fixed salary, and is removable not at will but only in the manner provided by statute, the city contracts to pay him until thus lawfully removed, and the same rules apply to a breach of that contract as to that of a similar contract of employment between individuals, except that on grounds of policy the public will not be compelled to pay twice for the same services where it has once paid to the person in fact occupying the office or position. Martin v. City of New York, 176 N. Y. 371, 68 N. E. 640. The plaintiff was at all times ready to perform his part of the contract, and made many tenders of performance, and I think the question of his right to recover under such circumstances is no longer open to discussion. Steinson v. Bd. of Education of N. Y., 165 N. Y. 431, 59 N. E. 300; Graham

v. City of New York, 167 N. Y. 85, 60 N. E. 331; O'Hara v. City of New York, 46 App. Div. 518, 62 N. Y. Supp. 146, affirmed on opinion below, 167 N. Y. 567, 60 N. E. 1117.

The judgment should be reversed. All concur.

FLEISCH v. SCHNAIER.

(Supreme Court, Appellate Division, First Department. June 7, 1907.) INJUNCTION-LEASE-SUBLETTING.

Code Civ. Proc. § 603, provides that, to entitle plaintiff to an injunction, it must appear in the complaint that he is entitled to judgment against the defendant, restraining the commission or continuance of an act, the commission or continuance of which during the action will produce injury to the plaintiff. Held, that a landlord was not entitled to a judgment restraining his tenant from subletting premises, where it was not forbidden by the lease, under a complaint alleging that the tenant threatened to sublet the premises to negroes, 10 Chinamen, and to the most undesirable persons he could find, and put them in possession and occupancy thereof at the lowest rent.

[Ed. Note. For cases in point, see Cent. Dig. vol. 27, Injunction, §§ 8-14; vol. 32, Landlord and Tenant, §§ 221-225.]

Appeal from Special Term, New York County.

Action by Adelaide Fleisch against Jacques Schnaier. From an order continuing an injunction, defendant appeals. Reversed.

Argued before INGRAHAM, LAUGHLIN, CLARKE, SCOTT, and LAMBERT, JJ.

Milton Mayer, for appellant.

Wm. A. Keeler, for respondent.

INGRAHAM, J. The plaintiff leased to the defendant the back and front parlors of premises No. 664 Lexington Avenue, to be used by the defendant, the back parlor as a dental office, and the front parlor as a waiting and reception room; the plaintiff further agreeing that she would not rent the basement to any tenant displaying signs, show cases, or articles of merchandise on the outside of the premises. This lease was to commence on October 1, 1905, and was for two years, the tenant to have the privilege of renewing the lease for three years, and for this the tenant was to pay $50 a month. The complaint alleges that the defendant, in the month of March, 1907, threatened and told the plaintiff that he was about to sublet said parlor to negroes, 10 Chinamen, to the most undesirable person or persons he could find, and put them in possession and occupancy thereof at the lowest rent. The defendant does not seem to have answered any of these affidavits, but it is quite clear that there was no justification for an injunction. It is well settled that in the absence of an express restriction, either by contract or by statute, the tenant has a right to assign his lease or sublet the premises. Eten v. Luyster, 60 N. Y. 252; 18 American & English Enc. of Law (2d Ed.) 659.

To entitle the plaintiff to an injunction, it must appear from the complaint that the plaintiff demands and is entitled to judgment against